Citation Nr: 1426674
Decision Date: 06/12/14 Archive Date: 06/26/14
DOCKET NO. 12-00 021A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah
THE ISSUES
1. Entitlement to an initial rating greater than 20 percent for lumbar spine degenerative arthritis.
2. Entitlement to an initial rating greater than 10 percent for right great toe hallux valgus.
3. Entitlement to an initial compensable rating for bilateral onychomycosis
4. Entitlement to an initial compensable rating for left foot plantar fasciitis.
5. Entitlement to an initial compensable rating for actinic keratosis.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
R. Sauter, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant, had active duty service from August 1979 to September 2010.
This matter comes on appeal before the Board of Veteran's Appeals (Board) from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
A remand is required to ensure that there is a complete record upon which to decide the Veteran's claims. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c) and (d) (2013).
The Veteran was afforded May 2010 VA examinations to assist in determining the current nature and severity of his service-connected lumbar spine degenerative arthritis, currently rating at 20 percent disabling; his right great toe hallux valgus, currently rated at 10 percent disabling; and his bilateral onychomycosis, left foot plantar fasciitis, and actinic keratosis, all currently assigned a noncompensable (0 percent) rating.
In a March 2013 VA Form 646, the Veteran's representative indicated that the Veteran's service-connected disabilities have worsened, asserting that "the current ratings are no longer commensurate with the severity of the conditions." In light of this assertion and the length of time since the last examination, additional VA examinations are warranted. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").
Additionally, the record reflects that there may be outstanding Social Security records. In June 2012 VA received a response from the Social Security Administration that there were no records as the Veteran did not file for benefits or filed for benefits but no records were obtained. A March 2013 memo from a Decision Review Officer states that the Social Security Administration subsequently took action on the Veteran's application for Social Security Disability benefits; however, the claims file does not contain a record of that action. Accordingly, these records should be obtained. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is required to obtain SSA records when they may be relevant to the claim).
While on remand, updated VA and private treatment records should also be obtained.
Accordingly, the case is REMANDED for the following action:
1. Contact the Social Security Administration and attempt to obtain records relating to Social Security Disability benefits provided to the Veteran. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e).
2. Attempt to obtain all VA treatment records dated from February 2012 to the present pertaining to the Veteran's service connected lumbar spine degenerative arthritis, right great toe hallux valgus, bilateral onychomycosis, left foot plantar fasciitis, and actinic keratosis. Any such records should then be associated with the claims folder.
3. Attempt to obtain all private treatment records dated from February 2012 to the present pertaining to the Veteran's service connected lumbar spine degenerative arthritis, right great toe hallux valgus, bilateral onychomycosis, left foot plantar fasciitis, and actinic keratosis. Any such records should then be associated with the claims folder.
4. After any records requested above are obtained, schedule the Veteran for a VA spine examination. The examiner is requested to review the records and should specifically provide an opinion as to the current nature and severity of the Veteran's lumbar spine degenerative arthritis. All indicated tests and studies should be accomplished and the findings then reported in detail.
The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached.
5. After any records requested above are obtained, schedule the Veteran for a VA foot examination. The examiner is requested to review the records and should specifically provide an opinion as to the current nature and severity of the Veteran's right great toe hallux valgus and left foot plantar fasciitis. All indicated tests and studies should be accomplished and the findings then reported in detail.
The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached.
6. After any records requested above are obtained, schedule the Veteran for a VA dermatology examination. The examiner is requested to review the records and should specifically provide an opinion as to the current nature and severity of the Veteran's bilateral onychomycosis and actinic keratosis. All indicated tests and studies should be accomplished and the findings then reported in detail.
The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached.
7. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claim for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).